Varnon & Danby
[2023] FedCFamC1F 394
•18 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Varnon & Danby [2023] FedCFamC1F 394
File number(s): BRC 13259 of 2021 Judgment of: CAREW J Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – PARENTING – Where on day one of a three day trial the parties seek that the Court make an order by consent and the proposed order is supported by the independent children’s lawyer – Where the order provides for a graduated change of residence into the father’s primary care – Where there were allegations of risk relating to family violence and child sexual abuse perpetrated by the father – Where submissions were made addressing how the proposed order addresses these risks Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 27 Date of hearing: 17 – 18 May 2023 Place: Brisbane Counsel for the Applicant: Dr M Sayers Solicitor for the Applicant: Kanoon Law Group Counsel for the Respondent: Mr R Hii Solicitor for the Respondent: Hodgson Lawyers Counsel for the Independent Children's Lawyer: Ms D Pendergast Solicitor for the Independent Children's Lawyer: Norman & Kingston EX TEMPORE ORDER
BRC 13259 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VARNON
Applicant
AND: MS DANBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
18 MAY 2023
THE COURT ORDERS BY CONSENT THAT:
1.All previous Orders are discharged.
Parental responsibility & parenting
2.The parents shall have equal shared parental responsibility for all major long-term issues as that term is defined in s 4 of the Family Law Act 1975 (Cth) for the child X, born 2011 (“the child”) including but not limited to education, health, religious and cultural upbringing.
3.Notwithstanding the provisions of paragraph 2:
(a)The mother shall be responsible for the daily care, welfare and development of the child when the child is with her;
(b)The father shall be responsible for the daily care, welfare and development of the child when she is with him.
Living Arrangements
4.The child shall live with the father and mother at all times as may be agreed and failing agreement, pursuant to this Order.
5.The child shall live with the parents in a graduated time schedule, for the child to spend and then live with the father as follows:
(a)Supervised by either the paternal grandparents and/or his partner Ms B each Sunday from 10.00 am to 5.00 pm for a period of two months; and thereafter
(b)Supervised by either the paternal grandparents and/or his partner Ms B each alternate Saturday and each Sunday from 10.00 am to 5.00 pm for a period of two months; and thereafter
(c)Supervised by either the paternal grandparents and/or his partner Ms B each alternate Saturday to Sunday from 10.00 am Saturday to 5.00 pm Sunday for a period of two months; and thereafter
(d)From Monday (after school) to the following Monday (before school) for a period of two months.
(e)Thereafter, for the child to live with the father during school term time in the following fortnightly cycle:
(i)In Week One, with the father from after school Monday to before school the following Monday.
(ii)In Week Two, with the mother from after school Thursday to before school Monday (or the following Tuesday if the Monday is not a day the child is required to attend school) the balance of time that week with the father.
6.Commencing at the end of Term 4, 2023 school holidays the child spend time with the mother and father during school holidays as follows:
(a)Equal time (spent in consecutive weeks) in the end of Term 2 and Term 4 school holidays (the first half with the mother in even numbers years and the second half with the mother in odd numbers years).
(b)All of the end of Term 1 and Term 3 school holidays with the mother.
7.For the purposes of this Order, the school holidays will be deemed to commence at the conclusion of school on the last day of the school term and conclude at 4.00 pm on the day prior to the new school term. If there is an uneven number of nights in the school holiday period, the parent spending time with the child in the first half of the school holiday period shall have the extra night.
8.(a) The time pursuant to paragraph 5 herein re-commence after each school holiday period as if it had not ceased.
(b)For the purposes of changeovers when not occurring on a school day, they shall occur at the C Shopping Centre Cinema.
Therapy
9.The parents shall do all things necessary to have the child continue to receive therapy from Dr D, until such time as she recommends such therapy is no longer necessary.
10.The parents shall continue to attend therapy with Dr D as recommended by her and to attend any further counselling or programs as may be recommended by Dr D.
11.The parents shall adopt any reasonable measures and recommendations by Dr D, including but not limited to the child having her own mobile phone and/or a safety plan to be in place for her.
12.The parents are at liberty to provide to Dr D copies of the Family Reports in these proceedings and this Order.
13.The parents shall equally share the costs of the child’s therapy sessions with Dr D and any other referrals for treatment as recommended by Dr D.
14.The parents are responsible for the costs of their own respective individual engagement with Dr D or any other treatment provider they consult with upon the recommendation of Dr D.
Christmas and New Years
15.At Christmas each year, the child shall spend time with the mother from:
(a)In odd numbered years, from 12 pm on 24 December to 12 pm on 25 December;
(b)In even numbered years from 12 pm on 25 December to 12 pm on 26 December.
16.At Christmas each year, the child shall spend time with the father from:
(a)In odd years, from 12 pm on 25 December to 12 pm on 26 December;
(b)In even numbered years, from 12 pm on 24 December to 12 pm on 25 December.
Other Special Days
17.(a) If Father's Day falls on a weekend when the child is not already spending time with the father, from 5.00 pm on the Saturday before Father's Day until 5.00 pm Father's Day;
(b)As and from 2024, if Mother's Day falls on a weekend when the child is not living with her, from 5.00 pm on the Saturday before Mother's Day until 5.00 pm Mother's Day;
(c)On the child's birthday, if during a school day when the child is not already spending time with the mother, from 5.00 pm to 7.00 pm that day and if a non‑school day, from 3.00 pm to 7.00 pm on that day;
(d)In the event Anzac day falls on a day when the child is to be with the mother, then the father is to collect the child at 6.00 pm on 24 April and return the child at midday on 25 April.
Telephone Communication
18.The parents shall permit the child to telephone the parent not spending time with the child at any reasonable times.
19.The parent not spending time with the child may telephone the child as agreed in writing between the parties and failing agreement on Tuesdays and Thursdays between the hours of 5.30 pm and 7.00 pm and for the purpose of this Order:
(a)The parents must arrange for the child to call the other parent at the earliest opportunity, if the child misses the call from the first parent;
(b)The parents must ensure the child has privacy and is not interrupted during the call; and
(c)The parents shall not record the calls.
20.For the purposes of paragraph 19 herein, the parents are to provide each other with a telephone number on which they may contact the child.
Health
21.The mother and father shall advise each other by telephone immediately upon becoming aware of any of the following in relation to the child:
(a)Any illness or injury requiring a medical examination or medical consultation;
(b)Any illness requiring the provision to the child of any medicine prescribed by a medical practitioner;
(c)Any hospital attendance for examination, consultation or treatment;
(d)Any proposed dental treatment;
(e)Any proposed appointment with any other health professional, including all details as to the health or educational professional and the time of the attendance or appointment;
(f)Any issue of concern raised with either parent by the child's school relating to her education, welfare or behavior.
22.The parents shall keep each other informed of their current mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
23.Each parent shall communicate with the other parent, by way of the ‘Talking Parents” Parenting App (at their own respective costs), unless agreed otherwise in writing, and only for the purposes of discussing the child, discussing information concerning the child, or for the purposes of fulfilling their responsibilities pursuant to paragraph 21 of this Order, except in the event of the child being ill or in an emergency where the parent with whom the child is with is to contact the other parent forthwith by text message to inform them.
General
24.(a) A parent is not to denigrate the other parent in the child's hearing;
A parent will remove the child from the presence/hearing of a third party who is denigrating the other parent; and
(c)A parent is not to discuss these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, or from permitting any other person to do so.
25.Both parents shall be at liberty to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
26.Each parent is at liberty to attend the child's school for the purposes of any function or activity normally attended by parents.
27.This Order acts as an authority to any health care professional, educational facility or extra-curricular activity provider upon whom the child attends to provide all information, and documents with regards to the child (save for the parents’ residential addresses) to each parent at the cost of the requesting parent. The parents shall keep each other informed of the names and addresses of any treating medical or other health practitioner who treats the child.
28.The child shall be permitted to travel overseas with each parent (only to countries that are party to the Hague Convention on the Civil Aspects of International Child Abduction) during the time that the child would normally be spending with that parent and the following provisions shall apply:
(a)Give the other parent notice in writing of their intention to travel within 45 days of their intended travel dates;
(b)Within 21 days of the intended departure date, provide the other parent with a copy of the travel itinerary including but not limited to departure and return time and dates, contact telephone number of the travelling parent, and accommodation details; and
(c)Within 21 days of the intended departure date, provide the other parent with a copy of the child's return ticket to Australia.
(d)In the event that the mother travels overseas with the child, and upon compliance with paragraph 28(a) to (c) herein, the father shall provide the child's passport to the mother not less than 14 days prior to the scheduled date of departure.
(e)That the mother shall return the child's passport to the father within 7 days of her return to Australia.
29.The father shall hold the child's passport and both parents shall do all things and sign all documents necessary so as to cause a passport to issue for the child, at the cost of the requesting parent.
30.The parents shall do all things necessary at their equal shared expense, to enroll the child at year seven at E School, to commence year 7 at such time as may be recommended by that school.
31.The mother shall pay to the father the outstanding sum owed to him pursuant to the Costs Order dated 13 August 2020, at the rate of $200 per fortnight commencing 1 July 2023.
32.Within 30 days of this Order, the mother is to enroll, at her own cost, in a Circle of Security Program or a Positive Parenting Program (whether online or in-person).
33.Within 14 days of this Order, the father is to apply to enroll, at his own cost, in whichever 2 courses from the following list of courses is the soonest available (whether online or in-person):
(a)Circle of Security; or
(b)Positive Parenting Program; and
(c)Anger Management; or
(d)Men’s Behavioral Change.
34.The father and mother are to complete the courses pursuant to paragraphs 32 and 33, and on completion of the courses provide the other written confirmation of their completing of those courses.
35.The father is to notify the mother within 3 days of any of the following occurring:
(a)The father is a named party to a domestic violence order (other than an order to which the mother is also a party or a protected person);
(b)The father is charged with or convicted of a breach of a domestic violence order;
(c)The father is charged or convicted of any assault or similar criminal offence against a third party.
36.(a) Dr D shall be retained by the independent children’s lawyer (at the equal shared expense of the parents) to explain this Order to the child and for this purpose, the mother is to take the child to Dr D on the 5 June 2023 at 4.00 pm;
Pending the explanation in (a) occurring, the parents are restrained from discussing, explaining or otherwise informing the child of the content of these orders.
37.The parties shall ensure the child attend school each school day, except if the child’s non-attendance is due to illness or some other agreed reason. In the event the child does not attend school due to illness, the parent who the child is with must obtain a medical certificate within 24 hours of the date the child does not attend school and the medical certificate must state the precise nature of the illness and why the illness prevent the child attending school and provide it to the other parent.
38.All outstanding applications are dismissed, in particular the Contravention Application filed 6 October 2021.
39.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
IT IS NOTED:
A.The parents are to ensure the child takes all prescribed medication in accordance with the child’s treating medical practitioner’s recommendations.
B.The parents agree and understand that the implementation of paragraph 5 is not contingent on paragraphs 32, 33 and 34.
C.The Court notes that the mother withdraws the allegation that the child is at an unacceptable risk of harm from the father due to the alleged sexual abuse.
D.The paternal grandparents Mr F and Ms G continue to be bound by their Undertaking given by them to the Court on 18 August 2022.
E.Ms B is to file her Undertaking as a supervisor by 4.00 pm on 19 May 2023.
IT IS FURTHER NOTED
F.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
G.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
In the afternoon of what was to be the first day of a three day trial, the parties to this parenting dispute, Mr Varnon (whom I will refer to as “the father” to assist with the anonymisation of these reasons) and Ms Danby (whom I will refer to as “the mother”) provided the Court with a signed minute of order consenting to future arrangements for their 11 year old child, X (“the child”), who was born in 2011. The independent children’s lawyer (“ICL”) also consents to the proposed order.
The proposed order will see a significant change in the current arrangement in that the child will commence to live primarily with the father later this year having spent only supervised time with him since March 2022 and not having seen him at all for over a year prior to that. The proposed order also includes a provision for equal shared parenting responsibility, which requires the parents to make joint decisions about major long term parenting issues as that term is defined in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”). The proposed order addresses one of those major long term matters, namely the school the child will attend for high school.
While s 60CC(5) of the Act relieves the Court of the obligation to consider all or even any of matters set out in s 60CC(2) (primary considerations) and (3) (additional considerations) when determining whether or not a proposed consent order is in the child’s best interests in the particular circumstances, the Court must be satisfied that any risks identified are satisfactorily addressed and that on its face the order is in the child’s best interests.
At the time this matter was set down for trial, the parties identified the following issues for determination:
(1)Does the father pose an unacceptable risk of harm to the child?
(2)If so, can the harm be adequately ameliorated by supervised day time only between the father and the child?
(3)Can and will the mother facilitate a meaningful relationship between the father and the child if the father does not pose an unacceptable risk of harm to the child?
(4)Can the mother meet the educational and developmental needs of the child?
The nature of the risk to the child allegedly posed by the father involved the risk of exposure to family violence and the risk of sexual abuse. The mother, through her counsel, not only acknowledges that the evidence would not support a finding that the father posed an unacceptable risk of sexual abuse but withdrew her allegations that he had sexually abused the child. The latter concession is made despite the mother’s evidence that she would always “believe” the child.
The mother alleges that her relationship with the father, which commenced in 2008 and ended in 2015, was characterised by family violence. The mother particularises the violence as including the following:
(a)In early 2012, the father grabbed her by the hair, pulled her to the ground and dragged her along the floor resulting in her sustaining bruising;
(b)The following day, the father placed her in a head lock when the child (and the mother’s two other children, then about nine and eleven years of age) were in the house;
(c)The following, the father put his fists in the mother’s face while yelling at her and “placed his hand on [her] throat”;
(d)In late 2012, the father refused to let the mother leave the house, and threatened to commit suicide;
(e)The father repeatedly threatened to commit suicide if the mother left him and on one occasions she found him in a self-harm attempt with a bottle of alcohol in his hand;
(f)In early 2014, the father threw dangerous objects at the mother when the children were present;
(g)On one occasion the father punched the mother in the face when she refused to perform oral sex;
(h)The father repeatedly punched holes in the walls when he was in a rage;
(i)In 2015, the father made a phone call in front of the mother giving the instructions to kill the mother if he went to prison; and
(j)After separation the father withheld the child from the mother until she obtained a court order.
The father has an admitted history of illicit substance abuse but contends he has not used illicit substances since 2017. The father works full time as a tradesperson.
Despite the history, the mother and father agreed to a final parenting order in 2016, providing for them to have equal shared parental responsibility and for the child to live primarily with the father before gradually moving to equal time with each parent.
From 2017, the mother contends that she received information from the father’s then girlfriend that the child was exposed to violence in her relationship with the father. The mother contends that she observed bruising on the child. The mother says she was disappointed in the failure of the child safety authorities to intervene. However, the child safety authorities undertook an investigation and concluded that the child was not in need of protection.
The father largely denies all allegations of family violence made against him by the mother and contends that he was the victim of family violence from the mother including by her cutting up his clothes, assaulting a female neighbour because the mother was jealous, and smashing his aftershave bottles after an argument. The father contends that the mother’s anger at times affected her parenting. The father concedes he was the subject of two protection orders during the relationship with the mother but says he consented to the orders without admission. The father was twice dealt with for contravening the protection orders. Both incidents occurred in late 2014 shortly before separation. In the first of those incidents, the father admits to yelling at the mother, which was a breach of the order, and on the second occasion he admits to damaging a wall during an argument and making threats of harm to the mother, which she recorded. The police records indicate that the child was a witness to and involved in the dispute by the father. The child was three at the time. Shortly after, the parties separated. The father denies withholding the child from the mother. He alleges the mother made no attempt to see the child for two years.
The father concedes that during a relationship with a woman named Ms H, which he says started in 2015 and lasted for about seven years, she obtained two protection orders against him to which he consented without admission. The father concedes to having arguments with Ms H but contends that he was the victim of her aggression. The father was dealt with for a contravention of a protection order against Ms H in 2017 involving a phone call contrary to the order. The father was attempting to arrange to collect his property but knew he was thereby breaching the protection order.
The mother initiated further parenting proceedings in 2019 seeking to vary the 2016 order. Her application was dismissed with costs in August 2020.
In 2021, the mother made the sexual abuse allegations and the father’s time with the child ceased until March 2022 when supervised time was ordered.
The risk to the child of sexual abuse rests on the following evidence from the mother:
45.[In early] 2021, [the child] walked into my bedroom and she said to me words to the effect that "she had something bad to tell me about Dad." I remember being quite confused at the time, and immediately I thought it was about more domestic violence that [the child] had to witness whilst she was spending time with [the father].
46. [The child] started to tell me that [the father] touched her on her private part.
47. [The child] was quite emotional when she made such disclosure to me. She told me that it happened approximately late 2020 to early 2021. She told me she cannot remember the exact date, but one night when she was there with [the father], she asked to sleep in [the father’s] bed due to some issue with the air-conditioning. In the middle of the night, she woke up to [the father’s] hand touching her private part.
The child was interviewed by police and is reported to have said that she had slept in her father’s bed because it was hot and his room had air conditioning. The child said she woke up about 1.00 am and started to watch YouTube on her phone. She said that she went back to sleep and when she next woke up the father had his arm around her and his hands down her pants, although he appeared to be asleep. The father denies the allegations. No charges were laid and police records indicate a conclusion that no offence occurred and “no evidence to suggest any sort of mistreatment against the child or anything to suggest she is not safe in the company of [the father]”. The father told police that at the end of 2020 his father told him that the child said - “Mummy said she’s going to fuck your life up and she’s got one more chance at this”. The paternal grandfather confirms this statement was made to him by the child.
In early 2022, the mother filed a further application for a protection order against the father but withdrew it on the day of the trial on 10 June 2022. The father intended to contest the application. The father contends that the application was malicious.
After the March 2022 order for the father to spend supervised time with the child, the father initially spent time with the child at a contact centre for about six months and since then his parents have supervised his time with the child, which occurs for four hours each week.
The mother expresses some concern about the effectiveness of the supervision, claiming that the child has told her that she has been swimming in the ocean with the father while his parents remain on the beach. The mother also contends that the child has complained about the father yelling and calling his mother names and on one occasion “spanking” the child with a “kite” after she spoke up in her grandmother’s defence.
While the mother, through her counsel, has withdrawn her allegations of sexual abuse against the father and concedes that the evidence would not support a finding of unacceptable risk, the mother maintains that she will continue to believe the child’s “disclosure”. The mother assures the Court that she will nevertheless continue to facilitate the child’s relationship with the father.
The mother describes the child presenting with significant symptoms of anxiety and depression and expressing thoughts of self-harm. The child has a significant history of school absenteeism. The child’s absenteeism is alarming such that there is some doubt that she can be assessed for entry into high school next year. The mother contends that the child has been bullied at school and expresses disappointment about the lack of intervention by the school. The school records reveal the school’s persistent attempts to engage with the mother about the child’s non‑attendance at school, to no avail. I was not taken to any evidence to support the child having been bullied at school.
The mother contends that she has done all she can to assist the child and that the child is currently seeing a psychologist and has recommenced on antidepressant medication. The mother is confident the child will improve and that her school attendance will resume. Indeed the mother has consented to an order to ensure the child’s attendance at school other than in the case of illness or other agreed reason. And in those circumstances a medical certificate will be required specifying the nature of the illness and why it prevents the child’s attendance at school.
The father contends that the mother has repeatedly made false allegations against him to the child safety authorities.
So with that history, how can I be satisfied that the proposed order is in the child’s best interests? The matter was adjourned overnight to provide an opportunity for the parties and the ICL to confer with the family report writer and the child’s therapist and further submissions were then made addressing the issues of risk and the changes proposed. Additional paragraphs were added to the proposed order to further address the risks identified.
The reasons indicating the order may be in the child’s best interests include the following:
(a)The parents and the ICL agree to the order;
(b)The mother has not proved to be able to address the child’s chronic school absenteeism and primary care with the father (although not until the end of the year) will address the issue;
(c)The child is conflicted in her loyalties to her parents and providing a graduated move to the father’s primary care will more likely enable the child to manage the transition;
(d)The child is ambivalent in her feelings towards the father and the graduated process will give her time to adjust;
(e)There is no evidence that the father has continued to use illicit substances after 2017 and he holds down a responsible, full time job;
(f)The father’s current girlfriend, Ms B, has known the father for 25 years although they only commenced a relationship in mid to late 2021. Ms B works as a professional. She denies witnessing or being the victim of any family violence from the father;
(g)Ms B’s observations of the child with the father portray an easy going and loving relationship;
(h)Ms B contends that she has formed a close bond with the child;
(i)The paternal grandfather describes a loving and close bond with the child and portrays the supervised visits as relaxed and happy and says he has never seen the child anxious or scared in the father’s presence;
(j)The child has previously lived with the father full time and had a close bond with him, at least up until the mother stopped the child seeing the father in 2021;
(k)The mother has a history of childhood sexual abuse and can be highly anxious and hypervigilant, which may have influenced the child;
(l)The family report writer recommended a graduated removal of supervised time and opined that determining the future parenting arrangements requires a balancing of the increased risk of parental alienation if the child continues to live with the mother while managing the child’s “sense of safety with the father”.
The family report writer stressed that irrespective of the validity of the sexual abuse allegations, the child’s wellbeing is significantly impacted by it and opined that increasing the child’s time with the father to unsupervised time may be “more detrimental for her”. On the other hand, the family report writer opined that in the absence of risk, a shift of primary care to the father may be “most beneficial” for the child.
The family report writer also recommended that the father engage in counselling to enable him to develop more emotionally responsive skills to adequately support the child, and that the mother engage in other forms of therapy than trauma counselling that builds her capacity to move forward. Both parents have agreed to undertake such counselling and the father has also agreed to undertake anger management or men’s behavioural change counselling. The parents’ counselling will also address the harmful impact of exposing children to conflict, including family violence.
On balance, I conclude that the child’s best interests in the circumstances of this complex case will be best served by making the order as agreed to by the parties and recommended by the ICL.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 18 May 2023
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